United States v. Timothy Lynn Calverley

11 F.3d 505, 1993 WL 536871
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 18, 1994
Docket92-1175
StatusPublished
Cited by17 cases

This text of 11 F.3d 505 (United States v. Timothy Lynn Calverley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Timothy Lynn Calverley, 11 F.3d 505, 1993 WL 536871 (5th Cir. 1994).

Opinions

EMILIO M. GARZA, Circuit Judge:

The defendant, Timothy Lynn Calverley, pleaded guilty to possession of ethyl ether (a listed chemical) with intent to manufacture amphetamine (a controlled substance), in violation of 21 U.S.C. § 841(d)(1) (1988). The district court sentenced Calverley to 115 months imprisonment, and Calverley now appeals his sentence. Finding no reversible error, we affirm.

I

Calverley was arrested and indicted for possessing 2.5 gallons of ethyl ether with the intent to manufacture amphetamine in violation of 21 U.S.C. § 841(d)(1) (1988). At his detention hearing, Calverley falsely testified under oath that he had not possessed ethyl ether. As a result, Calverley was indicted for perjury in violation of 18 U.S.C. § 1623 (1988). Calverley pleaded guilty to both the drug and the perjury charges.

Because Calverley had had a number of prior convictions, the Presentence Report (PSR) recommended that Calverley be sentenced as a career offender, under § 4B1.1 of the federal sentencing guidelines,1 and the district court adopted that recommendation. The district court refused Calverley’s request for a two point reduction in his offense level for acceptance of responsibility. Calverley was sentenced to 115 months imprisonment for the drug offense and 60 months imprisonment for perjury, both sentences to run concurrently.

Calverley appeals his sentence for the drug offense, arguing that the district court erred by (a) sentencing him as á career offender, (b) considering his prior convictions separately, rather than as a single conviction, (c) computing his offense level according to a sentencing guideline which was not in effect at the time of the offense, and (d) refusing to reduce his offense level by two points for acceptance of responsibility.

[508]*508II

A

Calverley contends that he must be resen-tenced because the district court misapplied § 4B1.1 of the federal sentencing guidelines by sentencing him as a career offender.2 See United States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov.1993). Calverley argues that his offense — possession of a listed chemical with the intent to manufacture a controlled substance, in violation of 21 U.S.C. § 841(d)(1) — is not a controlled substance offense, as defined in § 4B1.2(2), and therefore he is not eligible for the career offender enhancement provided in § 4B1.1. See id. § 4B1.2(2).

Because Calverley did not argue before the district court that his offense of conviction is not a controlled substance offense, we will review that issue only if it is a purely legal issue and our failure to review it would result in manifest injustice. See United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990) (“[I]ssues raised for the first time on appeal ‘are not reviewable by this [C]ourt unless they involve purely legal questions and failure to consider them would result in manifest injustice.’ ”). The question whether Calverley’s offense fits the guidelines’ definition of a controlled substance offense is purely a question of law. See United States v. Guerra, 962 F.2d 484, 485 (5th Cir.1992) (“The holding that Guerra’s attempted burglary conviction qualifies as a predicate offense for § 4B1.1 enhancement is a conclusion of law, reviewed de novo.”). Furthermore, since Calverley received substantial additional prison time due to the imposition of the career offender enhancement,3 the district court’s ruling was so prejudicial to Calverley that our failure to review his claim would result in manifest injustice. See United States v. Hosier, 988 F.2d 1374, 1382-83 (finding plain error where district court’s failure to apply proper guideline resulted in unwarranted 6 point increase in defendant’s offense level). We therefore review Calverley’s claim on its merits.

Under § 4B1.1 a defendant is a career offender if

(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. Calverley contends that he is not a career offender because his “instant offense of conviction” — possession of a listed chemical with intent to manufacture a controlled substance — is not a controlled substance offense, and therefore he does not satisfy the second condition of § 4B1.1.4 Under § 4B 1.2(2) a “controlled substance offense” is

an offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(2). The commentary to § 4B1.2 states that the term “controlled sub[509]*509stance offense” also includes the offenses of aiding and abetting, conspiring, and attempting to commit such an offense. See U.S.S.G. § 4B1.2, comment, (n. I).5

It is undisputed that Calverley was not charged with or convicted of any of the offenses specifically enumerated in § 4B1.2(2), or with aiding, abetting, or conspiring or attempting to commit any of those offenses. Calverley was convicted of possessing ethyl ether, which is a listed chemical,6 and § 4B1.2(2) does not mention possession of listed chemicals; it mentions only possession of controlled substances and counterfeit substances. Ethyl ether is not a controlled substance, because it is not named in the schedules of controlled substances found at 21 U.S.C. § 812.7 The ethyl ether which Cal-verley possessed also was not a counterfeit substance.8 Therefore, on its face the definition of a controlled substance offense in § 4B1.2(2) does not include Calverley’s offense of conviction and does not support application of the career offender enhancement to Calverley.

The government argues, however, that Calverley’s offense — possessing a listed chemical with intent to manufacture a controlled substance, in violation of 21 U.S.C. § 841(d) — is a controlled substance offense because it satisfies the definition of attempt to manufacture a controlled substance, which is a controlled substance offense specifically enumerated in § 4B 1.2(2) and its commentary.

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Bluebook (online)
11 F.3d 505, 1993 WL 536871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-timothy-lynn-calverley-ca5-1994.